NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.R.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6056-07T46056-07T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.R.,

Defendant-Appellant,

____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.R., a minor.

________________________________________________________________

 

Submitted March 23, 2009 - Decided

Before Judges Lisa, Reisner and

Sapp-Peterson.

On appeal from the Superior Court, Chancery Division, Family Part, Union County, Docket No. FG-20-12-08.

Yvonne Smith Segars, Public Defender, attorney for appellant S.R. (Beth Anne Hahn, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Imperiale, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor A.R. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, S.R., appeals from a judgment of guardianship entered on July 2, 2008 terminating her parental rights to her son, A.R., who was born on September 2, 2004. Defendant argues that the Division of Youth and Family Services (Division or DYFS) failed to present clear and convincing evidence to satisfy its burden of proving all four prongs of the best interest test. We disagree and affirm.

I

Defendant was born on June 2, 1985. She has never been married. A.R. is her only child. Defendant's relationship with the putative father, J.H., ended, and since DYFS's involvement, he has had no contact or role in A.R.'s life. Defendant reported that J.H. was living somewhere in Virginia, but his particular whereabouts are unknown.

The Division received its first referral on July 4, 2006 from Covenant House, a shelter in Newark, reporting that defendant and A.R. arrived that afternoon. Defendant said her boyfriend had kicked her out. Because Covenant House did not provide housing for children, its staff made efforts to locate a family shelter and requested assistance from the Division. It was determined that A.R. had not eaten all day, and defendant had no diapers for him.

A DYFS representative spoke with defendant, who stated she had been living with her mother in the Bronx, New York, until the past week. She said her mother told her she had to leave because she was twenty-one years old. She said she stayed with friends for the past week and came to New Jersey because she did not know of any shelters in New York. She declined to discuss the circumstances regarding her boyfriend or what friends she had been staying with the prior week.

Covenant House staff transported defendant and A.R. to another shelter, Raphael Lighthouse in Elizabeth. Late at night, defendant left, saying she was going to the store, although she was told no stores would be open at that hour and the shelter could provide whatever she needed. She took A.R. with her and did not return. She was found wandering the streets of Elizabeth in the middle of the night with A.R.

The Division was called on July 5, 2006 from Trinitas Hospital in Elizabeth reporting that the police brought defendant and A.R. to the emergency room. A DYFS record on that date reflected that defendant "seems to have psychiatric problems and at this time she is delusional." Division records reflect that A.R. appeared "groomed, clean, appropriately dressed and healthy," without any signs of abuse or neglect. Defendant's aunt was called and she, along with defendant's father and stepmother, came to Trinitas Hospital.

Defendant was in a delusional state and could not be interviewed. Defendant's father confirmed that defendant had a psychiatric history dating back to her teen years, which included a previous hospitalization. He believed defendant was prescribed medication, but was not taking it. He confirmed that defendant and A.R. lived with defendant's mother in New York, but she was away, and defendant was staying with her aunt in Newark.

Defendant's father and his wife were willing to take custody of A.R. The Division substantiated neglect and immediately removed A.R., placing him with defendant's father and stepmother. This was followed by an order on July 7, 2006 granting the Division's emergent application for care, custody and supervision of A.R. A.R. has continuously been in the custody of his grandfather and step-grandmother since that time, and they wish to adopt him.

An examining physician at Trinitas Hospital noted that defendant appeared delusional and claimed to be an Army captain. She had never served in the military. She also claimed to be a daycare worker and living in California. Defendant was transferred to Trenton Psychiatric Hospital on July 6, 2006. She initially denied any psychiatric history, but then reported a psychiatric hospital admission for two to three weeks in New York when she was sixteen years old. She was prescribed Risperdal, but could not recall why. Defendant was started on Risperdal, Cogentin and Ativan. She "was noted early on to be paranoid and at times verbally aggressive."

An initial psychiatric evaluation on July 6, 2006 revealed that defendant exhibited a psychotic condition with disorganized behavior and delusions, a history of mental illness and noncompliance with medications and follow-up care, and poor insight and lack of cooperation for treatment. She was diagnosed with Psychotic Disorder NOS.

Because of her hospital admission, no visitation with A.R. had been ordered. On July 19, 2006, a DYFS worker visited defendant and informed her that any visitation would have to be court ordered. Defendant failed to understand why she could not see her son, and she denied having a problem.

Defendant was discharged on August 18, 2006. Her level of functioning was "fair." She was prescribed Risperdal, Cogentin and the Ortho Evra patch.

Defendant moved in with her mother in the Bronx. She was scheduled for participation in the partial hospitalization program (PHP) at North Central Bronx Hospital. Defendant apparently had conflicts with her mother. She left her mother's home and took up residence at the Renaissance Women's Shelter in the Bronx. She began visitation with A.R. on September 15, 2006, during which she interacted appropriately with him.

Upon commencement of the PHP at North Central Bronx Hospital, defendant was diagnosed with Bipolar 1 Disorder, manic, severe. Her initial treatment plan was to continue with medications, participate in a medication assurance plan, and attend five group therapy sessions per week and two individual therapy session per week.

PHP records reflect that defendant was "guarded with information but interpersonally related and engageable." She had "no clear sense of why she was taking medications" and suggested she did not need them. She expressed an interest in "getting her life together and being able to care for her child." Soon after admission to PHP, she enrolled in Bronx Community College. Her class schedule conflicted with her PHP schedule. She continued to present with manic symptoms, including "rapid speech and decreased sleep." At times, she "appeared restless and exhibited psychomotor agitation with labile affect." The PHP records further reflect that defendant "exhibited poor judgment and impulsivity." Defendant apparently transferred to a Brooklyn shelter, and was unable to attend PHP regularly. She was discharged from PHP on September 18, 2006. Her final diagnosis upon discharge was "Bipolar 1 disorder most recent episode manic, in partial remission." Her discharge medications were Risperdal and Cogentin. Her final assessment upon discharge was:

Pt is a young woman who is most likely experiencing a significant amount of difficulty coming to terms with her mental illness. Pt has the capacity for relatedness but at the same time can be quite guarded about her life experiences and her feelings. Pt is likely to stop taking her medications and decompensate if effort isn't made to help her understand her mental illness.

Defendant was referred to the Interboro Mental Health Clinic, where she attended her initial appointment on September 25, 2006. DYFS provided defendant with a train pass to facilitate her travel from New York to New Jersey for meetings with the Division and visitation with A.R. The pass would also be used to attend psychotherapy and a parenting skills program. Reunification was the Division's objective.

On January 3, 2007, at the request of DYFS, Dr. Mark Singer, a psychologist, evaluated defendant. Defendant expressed her understanding that she was there because of a court order, and she explained that A.R. was taken away from her after she was out late with him looking for a shelter. However, she denied being disoriented or delusional at the time. She further related that she had lived in a shelter since September 2006, but that A.R. could not live there with her, and she expressed her desire to move to an apartment, complete college and have a career. She acknowledged her hospitalization in the summer of 2006 and her diagnosis with bipolar disorder. She said she was currently under the care of a psychiatrist and taking medication. She also reported attending therapy since September 2006 and her current parenting skills training.

In his report of the evaluation, Singer noted that defendant's responses indicated her attempt "to present herself in a highly favorable manner . . . suggestive of an individual who minimizes personal faults and holds unrealistically positive perceptions of one's level of psychological functioning." He further noted that defendant "has a personality style consistent with Obsessive-Compulsive Personality Disorder with narcissistic features." These characteristics are typically found in "an individual who engages in moralistic thinking, has significant difficulty acknowledging and responding to the needs of others, and tends to engage in public displays of compliance."

He found a significant risk posed to A.R. by defendant's behavior, which was, in part, the result of an apparent untreated mental illness. Individuals diagnosed with bipolar disorder "have a high rate of non-compliance with treatment." Singer was also concerned that defendant continued to have difficulty acknowledging and responding to the needs of others, which would present difficulty responding to the demands involved in parenting a child. He felt defendant continued to lack the necessary resources to care for A.R.

To work toward the goal of reunification, Singer made a number of recommendations. These included completion of the parenting skills training program, obtaining appropriate housing, employment and daycare arrangements, continued participation in individual psychotherapy, and compliance with prescribed medications and monitoring by a qualified psychiatrist. Finally, Singer recommended continuation of supervised visits, which, ideally, should increase in frequency and duration if possible. Singer concluded:

The above recommendations, if followed, are anticipated to assist [defendant] in becoming a more viable placement option for her son. Should she comply with and benefit from these recommendations, this case may be revisited in 3-6 months. At that time, treatment updates should be obtained from all treating professionals. Should [defendant] be unable or unwilling to comply with these recommendations, or should any other evidence arise suggesting [A.R.] would be at risk if reunited with his mother, alternative placement options may be explored.

The prognosis for this case is dependent upon [defendant]'s ability and willingness to continue to address the issues that have brought about DYFS involvement. Ideally, through compliance with the above recommendations, [defendant]'s mental illness will stabilize as she develops the ability to become a more responsive parent.

Supervised visits continued into 2007, and for the most part, went well. However, on June 6, 2007, the Division had an unannounced visit with defendant's father and stepmother at their home. The stepmother expressed concern about defendant's visits with A.R. because of defendant's inadequate attention to A.R. She reported that defendant needed to be reminded to feed A.R., and defendant napped after she fed A.R. Defendant's father and stepmother also expressed concern about defendant's lack of quality time with A.R. during her visits.

And, at a supervised visit on June 15, 2007 at the Division office another significant incident occurred. At the beginning of the visit, the Division worker observed that defendant "sat on a chair and appeared to be gazing into space, once in a while she will look towards [A.R.] but there was not interaction with her and [A.R.]." A.R. had climbed on a chair and was in danger of falling, but defendant made no effort to remove A.R. from the chair. After the Division worker told defendant she needed to remove A.R. from the chair, she did so, and sat back down. The worker instructed defendant that being a parent includes identifying and removing a child from a dangerous situation, and explained that defendant needed to learn how to play with A.R. to bond with him. Defendant was receptive, played with A.R., and appeared to enjoy it. When defendant realized A.R. had walked into the hallway, she brought him back into the room. The worker noted that the visit "went well," and A.R. appeared comfortable and happy in the presence of defendant.

On January 10, 2007, defendant had attended her court-ordered psychiatric evaluation by Dr. Ronald W. Crampton. Defendant reported the medications she was prescribed and said she was living with her mother at Renaissance Women's residence in Brooklyn. She denied past psychiatric history prior to her July 2006 admission to Trenton Psychiatric Hospital. In his review of records, Crampton noted in his report defendant's prior mental health intervention at age sixteen. He also had available to him and reviewed the records from North Central Bronx Hospital. He noted her discharge diagnosis from that facility of "Bipolar I Disorder, most recent episode manic, in partial remission."

Defendant told Crampton that on July 5, 2006, when she was found wandering the streets of Elizabeth in the middle of the night, she was merely lost and trying to find her way back to Brooklyn. Crampton found defendant alert and anxious and initially guarded and evasive, although she became "more related as the interview progress[ed]." He further described her mental status as follows:

Speech is clear, spontaneous and productive with a normal rate, rhythm and tone. Thought processes are goal directed with no indication of a formal thought disorder or acute mania. [Defendant] is evasive regarding certain aspects of her interpersonal functioning, the status of her children's father or the extent of financial support she receives. No persecutory or referential ideation or fixed delusional set revealed or elicited. After describing her current dwelling as a "private three story house in Brooklyn," [defendant] then rummages through her wallet to produce a photo identification card establishing her as [a] resident at the Renaissance Women's Shelter. [Defendant] reiterates her desire to continue her college education at Bronx Community College with the goal of becoming a "recreational therapist." [Defendant]'s explanation for wandering the streets of Elizabeth with her child was that she was merely "lost." She states "I was just trying to get back [to Brooklyn.]" Recurrent, distressing, intrusive thoughts, flashbacks or persistent preoccupations denied. [Defendant] denies symptoms associated with recurrent anxiety or panic attacks. Hallucinatory experiences or other perceptual disturbances denied.

Crampton recommended that DYFS determine the extent of defendant's psychiatric treatment. He was of the view that he had insufficient information to state categorically that defendant suffers from bipolar disorder. He acknowledged that "Brief Psychotic Disorder is presented here as a diagnostic consideration based primarily on the reports of [defendant]'s initial clinical presentation, the relative brevity of symptomology and other clinical factors." However, he noted that "Brief Psychotic Disorder is relatively uncommon and it is important to determine if the associated signs and symptoms are not better accounted for by another mental disorder, e.g. Bipolar Disorder." Crampton suggested this be clarified by defendant's treating psychiatrist.

Crampton recommended that if bipolar disorder is definitively determined, a mood stabilizer would probably be appropriate. He recommended "consistent, individual, supportive psychotherapy and possibly family therapy." He also suggested review of the visitation plan "with an eye to making it more liberal and less restrictive." And, realizing that "reunification or other disposition plans will be determined by adjudication," he strongly recommended "that any legal decisions regarding [defendant] and her minor child be guided in significant part by input from her mental health providers."

During this timeframe, as reported to DYFS in a communication of July 16, 2007 from the Department of Behavioral Health of the Kings County Hospital Center, defendant was "participating in biweekly group therapy and monthly medication management." She was compliant with her appointments and prescriptions and currently "stable on medication and her symptoms [were] in fair remission." Further treatment would be necessary, however "to ensure that she is in full recovery and [to] prevent relapse." It was further recommended that defendant remain in group therapy and on her current medications until she was free of symptoms for one year.

On September 19, 2007, Dr. Singer conducted an updated psychological evaluation of defendant and a bonding evaluation of A.R. with defendant and with his foster parents. Singer's report was generally favorable for defendant, but with some reservations. He noted the apparent absence of psychotic activity "based upon the available information." He also noted that defendant appeared to be compliant with treatment and that she reported completing her parenting skills program. He further noted, however, that defendant continued to minimize personal faults and held unrealistically positive perceptions of her level of psychological functioning. She demonstrated a significant need for attention and approval "and tends to engage in public displays of compliance." She "may engage in dramatic behavioral displays in order to win the approval and affection of others." He elaborated that "[t]he data further suggests that [defendant] is a secretive individual who is reluctant to disclose personal information. Such a style may limit [defendant]'s ability to reach out to others for assistance, if needed."

As far as defendant's ability to parent A.R., Singer reported:

[T]he data suggest that the most significant risk factor presented to [A.R.] is related to [defendant]'s mental health issues, specifically her Bi-Polar Disorder. While the data does not suggest that [defendant] is experiencing psychotic activity currently, the literature clearly suggests that the need for ongoing therapeutic and psychopharmacological interventions in order to treat and monitor Bi-Polar symptomotology. As long as [defendant] continues to comply with any and all treatment, this risk factor would likely be diminished.

The bonding evaluations revealed that A.R. viewed his foster parents and his mother as being significant parental attachment figures. A.R. formed strong bonds with all three individuals. Ideally, he would benefit by having all three individuals as part of his life. "Should any of these relationships be severed, [A.R.] would likely experience a negative reaction to the loss of a significant relationship. The duration and extent of this adverse impact would likely be mitigated through the existence and maintenance of the other significant attachment."

Singer concluded that immediate reunification would not be appropriate but, with additional support and time, defendant would likely be capable of parenting A.R. He further concluded that A.R. "clearly needs permanency and consistency in his life." He made a series of recommendations to assist defendant in working toward the goal of reunification. He recommended continued compliance with all treatment, therapy and medications (with monitoring), maintaining appropriate housing and obtaining appropriate daycare for A.R., increased visits, including overnight and unsupervised visits, "assuming that all treating professionals concur," and family therapy, including defendant, her father and stepmother, and A.R.

In September and October 2007, visitations went well. On October 3, 2007, Family and Children's Services (FACS) informed DYFS that defendant was on the waiting list for individual therapy.

On October 26, 2007, defendant submitted to a court-ordered psychiatric evaluation performed by Dr. Alexander Iofin. Iofin rendered a report on December 16, 2007. Based upon his interview of defendant and review of various medical records and reports and other materials furnished by DYFS, he rendered an AXIS I diagnosis of "psychotic disorder, NOS, affective disorder, NOS, provisional bipolar disorder, NOS, with psychotic features, versus schizoaffective disorder, bipolar type, history of noncompliance with medications and treatment, perpetrator of child neglect (due to psychotic conditions)." He rendered an AXIS II diagnosis of "personality disorder, NOS, with obsessive/compulsive and narcissistic personality features."

Iofin summarized his psychiatric opinion and recommendations, which we set forth at length:

In my opinion, with a reasonable degree of psychiatric probability, based on practice guidelines for treatment of psychiatric disorders, specifically Bipolar Disorder, this individual will require lifelong follow up with mental health providers located in geographic proximity to the household. She needs to be treated with utilization of appropriate treatment modalities from the armamentarium of psychiatry, which should include utilization of different psychotherapeutic treatment modalities, including individual and group therapy sessions, with the possibility also of family therapy sessions to be considered, which will involve her and her biological mother. Continuation of psychiatric treatment with utilization of psychopharmacological treatment modalities will be recommended in accordance with practice guidelines. Use of different classes of psychotropic medications will be considered, which can include major tranquilizers, mood stabilizers, antidepressants and perhaps other psychotropic medications from such classes as alpha I agonists, beta blockers, etc. Due to the documented history of noncompliance with medications in the past, which appears to lead to quite significant psychotic deterioration of this specific individual, utilization of treatment methods where it could be verifiable that she in fact is taking her psychotropic medications will be recommended to consider. Such techniques can include giving her Risperdal as injectable medications every few weeks, which will clearly show and prove her compliance, giving her psychotropic medications for example mood stabilizers, where the blood levels of medications can be checked in a haphazard manner, which will also show her compliance or noncompliance with treatment, will be recommended to consider.

. . . .

At the time of the current evaluation the patient was not in follow up with any mental health professionals in NYC and was running out of her psychotropic medications. Consequently, upon approval by DYFS she signed informed consent for continuation of her treatment and received prescriptions for Risperdal, Lexapro and Cogentin from the writer of this report, and put in writing her commitment to continue follow up in the Bronx with Independent Counseling Center.

For individuals who have a limited amount of knowledge in the field of psychiatry, the psychiatric conditions that she has had for a period of many years are consistent with the presence of neurodegenerative conditions in her brain, with the death of a significant amount of neurons (nerve cells), which led to the clinical picture of her losing touch with reality. If you want to receive more information about this specific condition in simple easy to understand language, I recommend you visit the website schizophrenia.com.

As a result of this neurodegenerative process she clinically is suffering from cyclical presentation of psychiatric problems in the Psychotic and Affective realms, which leads on occasion to her losing touch with reality, and requires inpatient psychiatric treatment. The presence of such conditions in the past, including two inpatient psychiatric hospitalizations, is the best predictor of that in the future she will have another bouts [sic] of these conditions, with deterioration in her functioning, and reasonable anticipation of her requiring further inpatient psychiatric admissions, even if she is in full compliance with her medications in the future, which was clearly not the case in the past.

Consequently, losing touch with reality, she will not be capable to provide any care for any minor child. In fact, such a child will be in danger of being neglected at a minimum if the mother loses touch with reality. . . . Consequently, with [the] absence of any reliable network, her history of transient lifestyle, and her significant sometimes extreme manifestation of chronic psychiatric pathology, which reflects chronic neurodegenerative process that ravages the brain of [defendant], from a psychiatric standpoint I cannot support her as an independent care giver for any minor child on a long term basis. Even if she has limited improvement in her manifestation of psychiatric problems for a short period of time (months rather than years) inevitably she will have significant deterioration in her psychiatric conditions, which will put any child in her care in a significant amount of danger, vacillating from neglect to physical abuse and possibly death for the reason of insanity of the care giver.

In November and December 2007, efforts by FACS to schedule defendant for individual therapy were unsuccessful. Various appointments were offered, but defendant was non-responsive. Finally, a December 11, 2007 letter from FACS to defendant scheduled an appointment for December 18, 2007, but required defendant to call to confirm or change it. The letter further advised that if defendant did not respond by December 31, 2007, her case would be closed.

On December 14, 2007, defendant advised DYFS she was seeing a psychiatrist, Dr. Guillermo Bacares, once a month at Lincoln Hospital in the Bronx. She also stated she was attending college full-time and working part-time. Efforts by DYFS to schedule a home assessment appointment were unsuccessful. On December 18, 2007, defendant's scheduled supervised visit at the DYFS office was canceled because of defendant's lack of confirmation.

On January 4, 2008, DYFS informed defendant's mother that her request to have A.R. placed in her home was denied. The Division noted that defendant currently resided with her mother and had not provided proof that she was receiving psychiatric treatment to address her mental health issues. On January 5, 2008, FACS again wrote to defendant, requesting that she call to schedule a therapy session. Defendant's treating therapist at FACS advised the Division on February 1, 2008 that she had seen defendant on January 25 and February 1, 2008 and, because defendant was seeing a therapist in the Bronx, treatment at FACS was no longer necessary.

Although defendant advised DYFS on February 1, 2008 that she completed a parenting skills class in the Bronx, she failed to provide proof that she did so. And, further DYFS efforts to schedule a home assessment appointment with defendant proved unsuccessful.

On February 4, 2008, Dr. Bacares informed DYFS that he had seen defendant in November and December 2007. She was scheduled for monthly services, and Bacares stated that "when he saw [defendant] in November she was not doing well. He stated that she was very depressed and in bad shape. He reported that when he saw her again in December . . . she appeared to be doing much better." On February 27, 2008, psychologist Suzanne Hirsch, of Lincoln Hospital, informed DYFS that defendant was receiving "verbal [treatment] every three weeks and Monthly Medication [Management] with Dr. Bacares MD. [Defendant]'s mood is stable, oriented x 3, goal oriented, and cooperative. [A]ttribute to [treatment]." On February 27, 2008, the Division sent defendant a letter advising her of the need to schedule a date to assess her home. The Division had been unable to reach defendant by phone.

On March 6, 2008 (one month after the first day of trial), FACS sent defendant a letter advising to call and confirm an appointment for her first parenting skills class. The letter informed defendant that "[f]ailure to do so will result in your case being closed, and returned to the referral source."

II

Trial began on February 5, 2008 and continued on March 25, April 28, June 4 and July 2, 2008. The Division presented the testimony of Dr. Singer as well as a Division case worker and supervisor. Defendant was present at trial and represented by counsel. She presented no witnesses and did not testify in her own behalf, nor did she offer any documentary evidence.

Singer testified regarding his psychological evaluation of defendant and the results of his bonding evaluations. Although he did not diagnose defendant with bipolar disorder, he testified that "the totality of the data suggested that [defendant] had been previously diagnosed with bipolar disorder, . . . a chronic mental illness." He further found "significant characterological issues, specifically the presence of obsessive-compulsive personality disorder combined with histrionic features." He noted that defendant presented herself in a secretive way, attempted to present herself favorably, and displayed defensiveness and minimization.

Singer reviewed Iofin's evaluation report, which noted defendant's noncompliance with psychiatric treatment. This caused Singer concern, as his recommendations relied on defendant's continued compliance with treatment. "The fact that she was running out of medication raises a concern regarding [defendant]'s ability to continue to care for herself, never mind -- never mind her child." Singer noted inconsistencies in what defendant reported to him and what she reported to Iofin regarding prior hospitalizations, as she did not mention her hospitalization as a teenager to Singer. Singer was of the view that defendant would need "in-home supports" in the beginning and "a whole social support system in order to increase" her likelihood of complying with treatment. He was concerned about defendant's ability to comply with treatment based on her father's statement that defendant's mother minimized defendant's mental health problems. Singer was further concerned by the Division's inability to assess defendant's mother's home because of a lack of responsiveness to requests for an evaluation.

Singer's testimony regarding his bonding evaluations was consistent with his reports. He advised against removing A.R. from his current caretakers and placing him with defendant, as "[i]t appear[ed] that [defendant] has difficulty attending to her own needs, specifically her mental-health needs, and as a result is not likely to be able to attend to the needs of [A.R.]." If defendant failed to attend to her mental-health needs, it was possible that defendant's "ability to function effectively within reality" would be compromised, and "that would place a child at significant risk."

Singer acknowledged that severing A.R.'s relationship with defendant "would have a significant adverse effect." However, if defendant lost her parental rights but maintained a relationship with A.R., Singer "would not expect [A.R.] to have any negative reaction." If A.R.'s foster parents wished for defendant to maintain contact with A.R., A.R. "would best be served by achieving a sense of permanency with his current caretakers, which would include severing the . . . legal aspects of parental rights. And, again, ideally allowing [defendant] to continue to play a role in [A.R.]'s life."

Singer was also questioned about the appropriateness of a plan for Kinship Legal Guardianship (KLG). Upon understanding the lack of permanency of KLG, Singer rejected it as inappropriate. He was of the view that permanency was essential to serve A.R.'s best interest.

In addition to the testimony of Singer and the DYFS personnel, Judge Spatola reviewed and considered numerous medical records and reports and DYFS records. She relied heavily upon Iofin's report. At the conclusion of the testimony, the law guardian supported the Division's effort to terminate parental rights, expressing to the court his view that the evidence established that termination was in A.R.'s best interest.

On July 2, 2008, Judge Spatola rendered a comprehensive oral decision. She found by clear and convincing evidence that the Division established all four prongs of the best interest test. We set forth at length her findings on each prong:

Prong One of the best interest test requires that the child's safety, health, or development has been -- proof that the child's safety, health, or development has been or will continue to be endangered by the parental relationship.

Here [defendant] harmed her son [A.R.] by wandering around, apparently homeless, and without resources on the 4th of July, 2006. Little [A.R.] had not eaten all day, and [defendant] was without any plan for his care or shelter.

Covenant House staff and DYFS staff both intervened to assist this young mother, and her not-yet-two-year old child. A shelter was found, Rafael's Life House. Despite having been transported there by Covenant House staff, [defendant] left in the middle of the night with [A.R.], and was eventually found wandering the streets by the police. [A.R.] was with her.

She was brought to the hospital. She was noted to be delusional. She wound up being committed to a psychiatric hospital until August 18th, 2006. [Defendant] admitted to Dr. Singer, the psychologist, that she had not been taking her prescribed medication at the time of her initial hospitalization at Trinitas in early July.

[A.R.] was harmed in that [defendant] placed him at extreme risk of harm when she wandered the streets with him late at night. He was harmed when she deprived him of the shelter that [the] two had been offered at Rafael [H]ouse. To be sure, a two-year old child's needs are meager -- meager at best. However, primary among these needs is the need for shelter. This [defendant] deprived her son of [that] when she wandered the streets with him.

. . . .

Prong One has been proven by clear and convincing evidence.

Prong Two of the best interest test requires proof by the Division that the parent is unwilling or unable to eliminate the harm facing the child, or is unable or unwilling to provide a safe and stable home for the child, and the delay of permanent placement will add to the harm. Such harm, of course, may include evidence that separating the child from the resource family would cause severe and enduring emotional or psychological harm to the child.

The Court notes that evidence that supports one prong of the best interest test may also support another prong thereof. The criteria set forth under each prong, quote, "are not discrete and separate," unquote, instead they overlap with each other to provide a comprehensive standard to identify a child's best interest. This is set forth in DYFS v. A.G. at 344 N.J. Super. 418 [(App. Div. 2001)].

. . . .

Based on [defendant]'s behavior during DYFS-monitored visits, then, based on her demonstrated lack of parenting skills, and her inappropriate behavior during weekend visits at the maternal grandparents['] home, and moreover, based on Dr. Singer's ultimate opinion, and Dr. Iofin's well-reasoned and quite weighty opinion, which resonates the more because it is consistent with [defendant]'s past psychiatric history, [defendant] is unable to parent any child. She would be particularly unable to parent a young child with special needs such as [A.R.] is.

. . . .

Therefore, this Court concludes that DYFS has proven the requisites of Prong Two of the best interest test by clear and convincing evidence.

Now as for Prong Three, that requires proof that the Division must have made reasonable efforts to provide services to help the parents correct the circumstances that led to the child's removal, and that the Court has considered alternatives to termination of parental rights and ruled them out.

Here, of course, we know that the reasonableness of DYFS efforts depends on the facts of each case. See In Re: the Guardianship of D.M.H., et. al. [ 161 N.J. 365 (1999)] at [p]age 390.

. . . .

As for [defendant], they offered her multiple psychological and psychiatric evaluations, a substance abuse evaluation. They offered her bonding evaluations. They also offered her visits. . . . Individual counseling . . . . They offered her train passes. . . .

DYFS also studied and approved the maternal grandfather and step-grandmother, and initiated an interstate evaluation on the maternal grandmother . . . .

They offered the maternal grandmother visits. DYFS also tried to coordinate [defendant]'s mental health services with those available to her in her home state of New York.

DYFS helped stabilize [A.R.] by placing him with a relative who allowed [defendant] frequent visits, thereby allowing her to work on building and continuing her bond with her son. They assisted [A.R.] by obtaining an early intervention evaluation, and subsequent needed services. . . .

There was really little else that the Division could have done in this case. There are -- therefore the Court concludes that the Division's efforts to assist -- to find the father and to assist the mother were reasonable under the facts in this case.

The Court further concludes that there is no alternative to termination of parental rights in this case.

. . . .

[Defendant] herself is not fit to parent [A.R.] safely, and for that I rely upon the report, the evaluation by Dr. Iofin of her psychiatrically, of Dr. Singer's trial opinion, and of her inappropriate behavior during her visits.

With regard to kinship legal guardianship, that is not an alternative here, since the maternal grandparents are willing to adopt the child. And pursuant to . . . former Chief Justice Debora Poritz' opinion, in DYFS v. P.P. at 180 N.J. 494 (2004), opinion by the New Jersey Supreme Court, "If adoption is both feasible and likely" -- as it is in this case -- "then kinship legal guardianship is no alternative."

Accordingly, the Court concludes that Prong Three of the best interest test has been established by clear and convincing evidence.

I should also note that the maternal grandmother is not an alternative, since the mother lives with her, and the mother is herself unfit. . . . [T]here would be no reason to move the child from one fit relative to another fit relative, even if [defendant] were not living with [her mother].

As for Prong Four of the best interest test, it requires proof by clear and convincing evidence that terminating parents' rights . . . will not do more harm than good.

[Defendant's case worker] has testified that the Division's plan in this case is adoption by [A.R.'s maternal grandfather and step-grandmother]. In deciding this aspect of the best interest test, the Court must consider and balance the relationship of both parent and child, and determine whether the child will suffer more if his ties with his parents are terminated, or if those with his current caretakers are broken.

The child in this case does have a secure bond with his current[] caretakers. They have cared for him since July 5, 2006, two years ago. That is, in fact, half of the child's life.

Although [defendant] also has a bond with her son [A.R.], and he obviously loves her and has a bond with her, she is, however, incapable of caring for herself without multiple supports, and would, in fact, be incapable of properly and safely caring for him.

The maternal grandparents are willing to adopt [A.R.] This will do him more good than harm, as he is thriving in their care, and by such adoption will achieve permanency. This is a primary goal of the Adoption and Safe Families Act, both state and federal.

That the maternal grandparents will probably continue to allow [A.R.] to have contact with [defendant] as long as her behavior is appropriate is a bonus, but it is not a requirement of this Court's opinion.

The Court notes that this Court's opinion is not inconsistent with Judge Villano's holding in a non-dissimilar case, which was reviewed by the Appellate Division and was confirmed in DYFS v. A.G. at 344 N.J. Super. 418.

All four prongs of the best interest test, having been established by the Division b[y] clear and convincing evidence, this Court does hereby terminate the parental [rights] of [defendant] and [J.H.] . . . .

III

Defendant argues that the Division failed to establish by clear and convincing evidence that termination of parental rights was required to provide for the best interests of A.R.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1a.]

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R. G. & F., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria "overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

We are satisfied from our review of the record that Judge Spatola's findings and conclusions on all four prongs are well supported by adequate, substantial and credible evidence. A.R.'s safety and health was clearly endangered by the incident of July 4 and 5, 2006. With respect to the second prong, we reject defendant's criticism of the judge's reliance on Dr. Iofin's report in support of her finding that defendant was unwilling or unable to eliminate her potential harm to A.R. Iofin's qualifications as a psychiatrist were not in dispute. His opinions were unrefuted. As such, they constituted competent psychiatric evidence. Further, Judge Spatola also relied on other evidence in support of the second prong, including Singer's concern about defendant's inability to care for herself or a child and that she was "a poor candidate for successful therapy." The judge also noted defendant's "lack of parenting skills" during DYFS supervised visits and defendant's "inappropriate behavior during weekend visits."

Defendant criticizes the services and treatment plan provided by the Division, contending that it inappropriately required defendant to move between New York and New Jersey, and the Division did not keep itself apprised of defendant's compliance with medication and counseling in New York. We do not agree. We are satisfied that Judge Spatola's finding that the Division made reasonable efforts under all of the circumstances to provide appropriate services is supported by the evidence. Further, the Division made efforts to place A.R. with relatives. This included defendant's father in New Jersey and her mother in New York. Efforts at assessing defendant's mother's home in New York were unsuccessful. Meanwhile, defendant's father immediately agreed to take custody of A.R. when the problems first arose in July 2006. Over time, that arrangement proved very successful and in the best interests of A.R., as a result of which any further efforts to consider placement with defendant's mother were rendered moot. Finally on this point, KLG was not an appropriate alternative to adoption because defendant's father and stepmother wish to adopt A.R. See DYFS v. P.P., 180 N.J. 494, 508 (2004).

Relying on Singer's bonding evaluations, defendant argues that terminating her parental rights would do more harm than good. We do not agree. Termination of parental rights inherently has the capacity to cause some harm to the child. The question under the fourth prong is whether that harm will be outweighed by the benefits of terminating parental rights. This requires a comparative analysis. In this case, viewing Singer's testimony in its entirety, we are satisfied it supports the judge's finding that termination will not do more harm than good.

Defendant raises one additional argument. At the conclusion of her oral decision, Judge Spatola commented that her decision in this case was not inconsistent with DYFS v. A.G., 344 N.J. Super. 418 (2001), certif. denied, 171 N.J. 44 (2002) (affirming termination of parental rights of a mentally ill parent.). Defendant argues that her mental health history and condition was not as lengthy and severe as that of the parent in A.G. Even if that is so, it is not dispositive. Each case is fact sensitive and each termination decision must be based upon the evidence presented in that case and measured against the standard codified in N.J.S.A. 30:4C-15.1a. That was the standard applied by Judge Spatola, and, as we have stated, we are satisfied that the evidence supports her findings and conclusion under that standard.

We affirm substantially for the reasons set forth by Judge Spatola in her thorough and well reasoned oral decision of July 2, 2008.

 
Affirmed.

The judgment of guardianship also terminated parental rights of A.R.'s putative father, J.H., who defaulted and did not participate in the proceedings in the trial court. J.H. is not implicated in this appeal.

Although the record is not specific, it appears that this facility is in Brooklyn.

An identical report appears for defendant's July 10, 2007 visit. Because the same report appears for both dates, it is unclear on which date this visit actually occurred.

In his report, Crampton mistakenly referred to this as the discharge diagnosis from Trenton Psychiatric Hospital.

(continued)

(continued)

36

A-6056-07T4

RECORD IMPOUNDED

 

April 15, 2009